Inspection Liability

Question: Is your department performing inspections in your respective jurisdiction and under what law, ordinance, policy or assumed responsibly provides the reason and authority to conduct these inspections?

Inspection Liability – Facing the large loss fire in Oakland (CA), the fire attorneys have discussed the advantages of routine fire inspections of high hazard facilities, special occupancies, schools, nursing homes or special use facilities. The December (2016) fire in Oakland in an artist colony called the “ghost ship” resulted in 36 lives taken and scores more injured. The issues were many from owner/operator liability to the perception of liability on the part of the City of Oakland and the fire department. As of this submission there is one lawsuit filed by the estates of several of the victims and the Fire Department has not been a party to this particular litigation. We will see what occurs with the other victims.

With past fire incidents involving a large loss of lives, the lack of comprehensive inspections, poorly conducted inspections or overstating the safety of a particular building played a role in the fire origin and the large life loss. Examination of the Station Night Club fire in 2003, to the Coconut Grove fire in 1942 and the Iroquois Theater Fire in 1903 and the Triangle Shirtwaist fire in 1911 find similar patterns of too many occupants, not enough exits, heavy fuel loads, confusion on the part of the occupants and lack of comprehensive inspections are just a few of the problems. The attorneys believe that prevention is better than litigation.

If you decide to perform inspections, as many departments have taken on that obligation, your department must have a comprehensive inspection program with some “legal teeth” to enforce the fire codes of your jurisdiction. Just the other day, in a conversation with a firefighter on this very issue, he stated the firefighters do the inspection, find hazards, notify the owner and file a report with the fire marshal’s office. Two to three months go by, a re-inspection occurs and the hazards remain. This is an organizational problem that may come back and haunt the fire department if there is an event in this particular establishment.

Legal Issues in Inspection Liability - The issue for inspection liabilities is complex and requires a court analysis of the specific fact presented on each and every case. In the Ghost Ship incident, litigation has begun on behalf of the estates of several of the victims and in these early filings, the City of Oakland is not a named party. Fingers are pointing at the Fire Department for an assumed liability they may not have. We may be under the assumption that the Fire Department is responsible for all inspections. The Oakland Fire Departments website indicates, the purpose of the Fire Inspection Bureau is related to prevention and risk mitigation to reduce the risks of fire and other types of emergencies in the community.  The Oakland Municipal Code, the California Fire Code, the California Health and Safety Code, and the California Building Code Standards establish minimum regulatory fire and life safety requirements for the installation and maintenance of buildings, equipment, and activities throughout the City of Oakland.

Other cities have similar purpose statements in their attempt to accomplish this inspection goal. Certainly municipalities with a low number of occupancies requiring inspections, the ability to inspect each and every occupancy is an achievable goal. In the larger cities, the volume of buildings to be inspected may overwhelm the inspection staff regardless if they are firefighters or civilian inspectors.

In spite of these horrific examples above, a question continues to arise which is, “are fire departments obligated to conduct fire inspections”? Well, are you?

Under the legal theory of the Public Duty Doctrine prevents successful suits by individuals who receive public services like any other member of the general public. Consequently, actions classified as “public duty” may not be the subject of private suits under the view that the government has no duty to provide public services to any particular citizen but a as general obligation, provides those services. One of the more difficult aspects of the public duty doctrine is distinguishing a “special relationship” that imposes liability from one of general services where no liability is imposed. The public duty rule might be viewed as a specific variation of “sovereign immunity” that precludes many suits against the government by private citizens. In any event, the public duty doctrine prevents private lawsuits.

The North Dakota Supreme Court in Ficek v. Morken, (685 N.W.2d 98, 2004) explained the reasons for the public duty rule, while declining to apply it in the above cited case, stated: “First, it is impractical to require a public official charged with enforcement or inspection duties to be responsible for every infraction of the law. Second, government should be able to enact laws for the protection of the public without exposing the taxpayers to open-ended and potentially crushing liability from its attempts to enforce them. Third, exposure to liability for failure to adequately enforce laws designed to protect everyone will discourage municipalities from passing such laws in the first place. Fourth, exposure to liability would make avoidance of liability rather than promotion of the general welfare the prime concern for municipal planners and policymakers. Fifth, the public duty rule, in conjunction with the special relationship exception, is a useful analytical tool to determine whether the government owed an enforceable duty to an individual claimant.” The Court went on to say, he public duty rule might be viewed as a specific variation of “sovereign immunity” that precludes many suits against the government by private citizens and in general, the public duty doctrine prevents private lawsuits. The public duty doctrine holds that a government agent cannot be civilly liable – even for breach of a ministerial duty – if that duty is owed to the general public as opposed to a particular individual.

Occupancy Access: Another problematic issues is the ability to access the occupancy. Citizens have a right to certain protections under the 4th Amendment including illegal search and seizure. Fire Inspectors desiring to enter a structure and the occupant refuses have the option to obtain an administrative warrant. In Conner v. City of Santa Ana (897 F. 2d 1487, (1990)) the City determined through its administrative procedures that two inoperative vehicles located on private property constituted a public nuisance. When the property owners refused to remove the inoperative vehicles, the City entered onto the property and removed the vehicles whereupon the property owners filed a civil rights action against the City and its employees alleging a Fourth Amendment violation. An inspection by administrative officials to determine whether a property owner is complying with building or fire code regulations is an administrative search. In See v. Seattle, (387 U.S. 541, 545 (1967)) held that “administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled” by obtaining a warrant

Torts Claim Act: Many if not all states have a Torts Claim Act that limits litigation in the case of ordinary negligence and is many cases caps the monetary claims at a certain amount. For example, the Texas Tort Claims Act (“The Act”) is a set of statutes that determine when a governmental entity may be liable for tortious conduct under state law. Prior to the adoption of the Act, individuals could not recover damages from state or local governmental units for injuries resulting from the actions of a government employee or officer in the performance of a governmental function.  

Granting governmental units sovereign immunity serves several purposes. It protects governmental time and resources from diminishment from private litigation and encourages forthright action by public officials. It also protects the government from fraudulent or frivolous suits that otherwise may arise because of the perceived “deep pockets” of government entities

Another example is the California Tort Claims Act (Gov. Code §§ 810-999.6) provides that public entities may be liable for failing to perform mandatory duties imposed by a code or law if the resulting harm is the kind of harm against which the code was designed to protect. While the Tort Claims Act provides a host of immunities to public entities, most of these only provide protection for discretionary activities. There are differences between ministerial vs. discretionary duties. Rather than local government automatically being immune from suit whenever a governmental act was involved, state law began to borrow the discretionary function rule which originated with the Federal Tort Claims Act in 1946, exempting from liability any act based on the exercise or performance (or the failure to exercise or perform) a discretionary function or duty, whether or not the discretion is abused.

In general, only discretion and judgment at the highest levels call for the imposition of governmental immunity for local government. There is no immunity from liability arising out of the negligent performance of a proprietary or ministerial act by a local governmental employee. A ministerial act is one performed under a given set of facts and in a prescribed manner in obedience to the mandate of legal authority (e.g., statute, established procedure, instructions from a superior, or other legal authority) without regard to, or the exercise of, the individual judgment of the local government employee on the propriety (i.e., the appropriateness) of the act being done.

A discretionary act is a government action performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment. It can be any act a government employee performs in a prescribed manner, without exercising any individual judgment or discretion. In Clayton v. City of Sunnyvale (62 Cal.App.3d 666, 671.(1976)) the court ruled in the City’s favor and favors public entities in a series of cases broadly interpreting a public entity's "inspection immunity" liability for both mandatory duties and discretionary activities. Moreover, courts have progressively expanded the types of "inspection" activities that fall within the immunity. The case in point is found in Haggis v. City of Los Angeles (22 Cal 4th 490 (2000)), where the inspection immunity was held to shield the city from claims by a landslide damaged homeowner, even though the city had knowledge of the landslide hazard before the improvements on the property were constructed, issued building permits for the improvements in clear violation of its own regulations, and failed to record a required substandard condition certificate, which, if recorded, would have warned of the property's instability before the plaintiff bought the property. It appears to be a significant stretch of the inspection immunity to protect the seemingly blatant misfeasances described in the Haggis case.

On its face, the inspection immunity provided by section 818.6 applies only to a failure to inspect property or to negligence in the actual inspection itself. A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property other that its property..., for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety. In a similar case, a worker was killed in a fire at an engraving company and the court held in Cochran v. Herzog Engraving Co. (155 Cal.App.3d 405 (1984)) the immunity is not limited to negligence in the inspection itself, but also protects the public entity when it actually discovers hazards during an inspection and fails to take actions mandated by law in response to the information obtained. The purpose of Government Code section 818.6 under the Torts Claims Act is to protect public entities from liability not only for failures to detect technical safety code violations, but for any negligence directly connected to the inspection process itself. In order for the immunity to apply, the negligence in question must have been included in the complete inspection or have had a direct or proximate effect on the inspection.

This is a complex issue and it would be time well spent to explore your obligations and immunities under these legal theories and Acts. Listen to Chip Comstock and John Murphy discusses fire inspections and possible liability on Blog Talk Radio: http://www.blogtalkradio.com/fireengineeringtalkradio/2016/12/09/episode-1435-fire-service-court  (may have to cut and paste)